Docket No. 84721–Agenda 3–January 1999.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 

								PATRICK H. WRIGHT, Appellant.

Opiunion filed November 18, `999.1999.

	JUSTICE RATHJE delivered the opinion of the court:

	Defendant, Patrick Wright, appeals from the trial court’s

dismissal of his second-amended post-conviction petition. Because

defendant was sentenced to death for the underlying murder

conviction, defendant appeals directly to this court. See 134 Ill. 2d

R. 651(a).

					BACKGROUND

	A jury convicted defendant of the 1983 murder of Carol

Specht, the attempted murder of Connie Specht, and related counts

of home invasion, residential burglary, armed robbery, and

attempted rape. Defendant waived a jury for purposes of

sentencing, and the circuit court of Coles County, Honorable Paul

Komada presiding, sentenced him to death. This court affirmed

defendant’s convictions and sentence of death. People v. Wright, 111 Ill. 2d 128 (1985) (Wright I).

	Subsequently, defendant filed a post-conviction petition. The

trial court, Judge Komada presiding, denied all post-conviction

relief. Defendant appealed, and this court affirmed. People v. Wright, 149 Ill. 2d 36 (1992) (Wright II). Thereafter, defendant filed a “Second Petition for Post-Conviction Relief” and a “Second

Amended Petition for Post-Conviction Relief.” The second petition

and the second-amended petition are the same, except that the

amended petition alleges that the first post-conviction proceedings

were void.1 The State moved to dismiss defendant’s petitions, and the trial court, Judge Komada presiding, granted the State’s

motion. Defendant now appeals.

	On appeal, defendant contends that the trial court erred in granting the State’s motion because (1) Judge Komada violated

defendant’s due process rights by ruling on defendant’s second

post-conviction petition, which alleged that, during defendant’s

trial and sentencing hearing, Judge Komada was operating under

a conflict of interest because he had prosecuted defendant for the

armed violence conviction that the State used as impeachment

evidence during trial and as an aggravating factor during

sentencing; (2) Judge Komada had a conflict of interest during the

original proceedings, defendant’s trial counsel was ineffective for

failing to raise the conflict issue, and defendant’s counsel on direct

appeal was ineffective for failing to argue that trial counsel was

ineffective; (3) the prosecutor had a conflict of interest because she

served as defendant’s attorney on the case in which Judge Komada

had prosecuted defendant, and defendant’s counsel on direct

appeal was ineffective for failing to raise this issue; (4) defendant’s

trial counsel was ineffective for failing to investigate, argue, and

introduce available evidence that defendant should be found guilty

but mentally ill (see 725 ILCS 5/115–4(j) (West 1994)); and (5)

defendant’s attorney was ineffective for failing to investigate the

existence of and not introducing available mitigating evidence of

defendant’s mental deficiency and his psychological problems.

	The State contends that defendant’s petition is untimely.

Alternatively, the State asserts that, even if the petition is not

untimely, the allegations in that petition are waived and barred by res judicata.

TIMELINESS

	We first address the State’s argument that defendant’s second

petition is untimely. The trial court entered final judgment on

defendant’s convictions and sentences on October 31, 1983. This

court affirmed defendant’s convictions and sentences in October

1985 (Wright I, 111 Ill. 2d 128), and the United States Supreme Court denied certiorari in February 1987 (Wright v. Illinois, 481 U.S. 1024, 95 L. Ed. 2d 519, 107 S. Ct. 1914 (1987)). Defendant

filed his initial post-conviction petition in August 1987. In May

1992, this court affirmed the trial court’s denial of post-conviction

relief (Wright II, 149 Ill. 2d 36), and, on February 22, 1993, the United States Supreme Court denied defendant’s motion to reconsider the denial of his request for certiorari (Wright v. Illinois, 507 U.S. 955, 122 L. Ed. 2d 749, 113 S. Ct. 1372 (1993)). Defendant filed his second petition on September 20,

1993.

	Section 122–1 of the Post-Conviction Hearing Act (725 ILCS

5/122–1 (West 1994)) provides, in pertinent part:

		“No proceedings under this Article shall be commenced

more than 6 months after the denial of a petition for leave

to appeal or the date for filing such a petition if none is

filed or issuance of the opinion from the Illinois Supreme

Court or 6 months after the date of the order denying

certiorari by the United States Supreme Court or the date

for filing such a petition if none is filed or 3 years from the

date of conviction, whichever is later, unless the petitioner

alleges facts showing that the delay was not due to his

culpable negligence.” 725 ILCS 5/122–1 (West 1994).2

The State asserts that compliance with the time limit in section

122–1 is a jurisdictional prerequisite to maintaining a post-

conviction petition. Defendant argues that the time limit is not

jurisdictional and that the State has waived its right to argue that

defendant’s petition is untimely.

Jurisdiction

	Relying upon People v. Heirens, 271 Ill. App. 3d 392 (1995), and People v. Stenson, 296 Ill. App. 3d 93 (1998), the State argues that the time limit provided in section 122–1 is a jurisdictional

prerequisite to maintaining a post-conviction proceeding and that

defendant’s failure to file timely his petition deprived the trial court

of jurisdiction to consider his claims. Defendant does not contend

that he filed his petition within the time limit of section 122–1.

Instead, he asserts that Heirens was incorrectly decided and that the time limit in section 122–1 is a statute of limitations that the State, by failing to raise the issue in the trial court, has waived.

	Both Heirens and Stenson hold that the limitations period found in section 122–1 is a jurisdictional provision that confers

subject matter jurisdiction upon the trial court to adjudicate a

defendant’s post-conviction petition. Stenson, 296 Ill. App. 3d at 96; Heirens, 271 Ill. App. 3d at 402. In reaching this conclusion, the courts relied upon this court’s decision in Fredman Brothers Furniture Co. v. Department of Revenue, 109 Ill. 2d 202 (1985). In Fredman, this court addressed the difference between statutes of limitations and statutes that both confer jurisdiction on a court

and fix a time within which such jurisdiction may be exercised. The

court noted that statutes of limitations are procedural in nature and

“only fix the time within which the remedy for a particular wrong

may be sought.” Fredman, 109 Ill. 2d at 209. “On the other hand, ‘statutes which create a substantive right unknown to the common

law and in which time is made an inherent element of the right so created, are not statutes of limitation.’ ” (Emphasis added.) Fredman, 109 Ill. 2d at 209, quoting Smith v. Toman, 368 Ill. 414, 420 (1938). In such cases, the time limit is “a condition precedent

to the plaintiff’s right to seek a remedy.” Fredman, 109 Ill. 2d at 209. Time is a condition of the liability itself and not of the remedy

alone. Fredman, 109 Ill. 2d at 209. “Such statutes set forth the requirements for bringing the right to seek a remedy into existence.

They do not speak of commencing an action after the right to do

so has accrued.” Fredman, 109 Ill. 2d at 210.

	A review of the time limitation found in section 122–1 reveals

that it has more in common with statutes of limitations than it does

with statutes conferring jurisdiction. The plain language of section

122–1 demonstrates that time is not an integral part of the remedy.

The mere passage of time does not deprive a defendant of his right

to seek a remedy. In fact, if a petitioner can demonstrate that the

late filing was not due to his culpable negligence, there is no time

limit within which a petitioner must file his post-conviction

petition. See People v. Bates, 124 Ill. 2d 81, 88 (1988); 725 ILCS 5/122–1 (West 1994). A safety valve that allows an unlimited time

in which to file a post-conviction petition cannot be reconciled with

a concept that makes time a condition of the liability or with a

position that time is an inherent element of the right created. As a lack of culpable negligence permits the filing of a post-conviction

petition regardless of the length of time that has passed, a lack of

culpable negligence–not time–is the inherent element.

	We agree with Chief Justice Freeman that the remedy provided

by the Post-Conviction Hearing Act is a remedy unknown at

common law. This, however, is not dispositive of the question of

whether the time period is jurisdictional. In Fredman, this court held that a limitations period is jurisdictional only if it creates a

substantive right unknown to the common law, and if time is an inherent element of the right created. Fredman, 109 Ill. 2d at 209. Clearly both of these provisions must be met. Because time is not

an inherent element of the right to bring a post-conviction petition,

compliance with section 122–1 cannot be a jurisdictional

prerequisite.

	This conclusion is supported by the fact that we have

previously considered the limitations period to be a statute of

limitations. In Bates, this court questioned whether an amendment to section 122–1, shortening the limitations period, applied

retroactively to a defendant who had been convicted before the

amendment was adopted. In holding that the amendment applied

retroactively, the court treated the limitations period in section

122–1 as a statute of limitations and specifically noted that

“statutes of limitations have historically been classified as

procedural in character, and that procedural amendments are

generally applied retroactively.” Bates, 124 Ill. 2d at 85.

	Chief Justice Freeman’s special concurrence attempts to

minimize the effect of this court’s decision in Bates by suggesting that the question of whether section 122–1 establishes a statute of

limitations was not the precise question before the Bates court. Notwithstanding these reservations, the fact is that in Bates the court held that the time limit in section 122–1 is a procedural

statute of limitations and that therefore amendments to it may be

applied retroactively. See Bates, 124 Ill. 2d at 85. While the court did not address the precise issue raised in this action, it did

carefully consider the character of the limitations period and found

it to be an ordinary statute of limitations. This is further

emphasized by the fact that, in affirming the trial court’s judgment,

the court stated that defendant’s “petition must be dismissed as untimely.” Bates, 124 Ill. 2d at 88. Such a conclusion is significant when one considers that we have a duty to consider, sua sponte, whether the trial court had jurisdiction to enter the judgment that

it did. See People v. Bounds, 182 Ill. 2d 1, 3 (1998); People v. Canty, 75 Ill. 2d 566, 570 (1979). The fact that, in Bates, the court reviewed the trial court’s judgment on the merits is an implicit, if

not explicit, recognition that compliance with section 122–1 is not

jurisdictional. See Hamilton v. Williams, 237 Ill. App. 3d 765, 772-73 (1992). Similarly, in People v. Reed, 42 Ill. 2d 169 (1969), this court affirmed the dismissal of an untimely post-conviction

petition. Just as in Bates, the court dismissed the petition as untimely and not because the trial court lacked jurisdiction. See

Reed, 42 Ill. 2d at 172. This court’s treatment of these untimely petitions reveals that it has always considered the time limit in the

Post-Conviction Hearing Act to be a statute of limitations and not

a jurisdictional prerequisite.

	We therefore hold that the time limit found in section 122–1

is a statute of limitations and that defendant’s failure to file his

petition within the limitations period did not deprive the trial court

of jurisdiction to consider defendant’s petition.

Waiver

	The State next contends that, if the limitations period is a

statute of limitations, defendant’s petition must be dismissed as

untimely. The State explains that, even if the limitations period did

not begin until after the United States Supreme Court denied

certiorari in defendant’s initial post-conviction proceedings (see People v. Caballero, 179 Ill. 2d 205, 214 n.1 (1997)), defendant’s petition is untimely because it was filed on September 20, 1993,

more than six months after the February 22, 1993, denial of

defendant’s motion to reconsider the denial of his request for

certiorari. Defendant does not contend that the petition is timely, but argues that, by not raising the limitations argument in the trial

court, the State has waived its right to argue that defendant’s

petition is untimely. During oral argument, the State asserted that

it has not waived this contention because, as the appellee, it may

raise on appeal any argument that might support the trial court’s

judgment. See People v. Monroe, 118 Ill. 2d 298, 300 (1987).

	In raising this argument, however, the State ignores the second

half of the Monroe rule, which requires that any points advanced in support of the trial court’s ruling must have a sufficient factual

basis before the trial court. Monroe, 118 Ill. 2d at 300. Here, although the facts support the conclusion that defendant did not file

his petition within the time limits found in section 122–1, that

section allows a defendant to file a petition outside the limitations

period if the late filing is not due to the defendant’s culpable

negligence. 725 ILCS 5/122–1 (West 1994). By not raising this

issue until the cause was on appeal, the State has effectively

precluded defendant from seeking to amend his petition to allege

facts demonstrating that the late filing was not caused by his

culpable negligence. While we recognize that section 122–1

requires the defendant to allege the facts demonstrating a lack of

culpable negligence, we do not believe that this requirement allows

the State to wait until an appeal to raise an affirmative defense that

the defendant may be able to avoid by amending his petition. By

failing to raise this issue below, the State has waived its right to

argue that defendant’s petition is untimely.

	In reaching this conclusion, we caution that we are not limiting

the trial court’s ability, during the court’s initial review of

noncapital petitions (see 725 ILCS 5/122–2.1(a)(2) (West 1998)),

to dismiss the petition as untimely. The import of our decision is

simply that matters relating to the timeliness of a defendant’s

petition should first be considered in the trial court, either upon a

motion by the State or pursuant to the duty imposed upon the trial

court by section 122–2.1(a)(2).

	Significantly, the opposite conclusion provides an incentive for

the State not to bring timeliness to the trial court’s attention. If the

State waits until appeal to raise the issue, it has effectively

precluded the defendant from seeking to amend his petition to

include allegations that he was not culpably negligent in filing his

petition.

	In sum, while we believe that a defendant should plead facts

demonstrating his lack of culpable negligence, we see no reason

that this statute of limitations should be treated different from any

other. Thus, if the State wishes to challenge the timeliness of a

defendant’s petition, it should raise that argument first in the trial court, where any amendments can be made and factual disputes

resolved.

VOIDNESS

	Although we do not find that defendant’s second post-

conviction petition is untimely, that does not mean that it is

properly brought. Generally, a ruling on an initial post-conviction

petition is res judicata with respect to all claims that were raised or could have been raised in the initial petition. People v. Flores, 153 Ill. 2d 264, 274 (1992) “Further, any claim of substantial

denial of constitutional rights not raised in the original or an

amended petition is waived.” Flores, 153 Ill. 2d at 274; 725 ILCS 5/122–3 (West 1994). A second post-conviction petition is

permitted only if the proceedings on the initial petition were

deficient in some fundamental way. Flores, 153 Ill. 2d at 273-74. This limitation strikes a balance between society’s interest in the

finality of criminal convictions and the defendant’s interest in

vindicating violations of constitutional rights. Flores, 153 Ill. 2d at 274.

	Here, defendant argues that he need not demonstrate that his

claims are not barred by waiver or res judicata. Instead, he asserts that the proceedings during his initial petition were void and that,

therefore, we must treat this successive petition as an initial

petition.

	Defendant contends that the initial proceedings were void

because Judge Komada refused to recuse himself from considering

the initial petition which included an allegation that James Dedman,

one of defendant’s trial attorneys, was ineffective. During the initial

proceedings, defendant orally requested that Judge Komada recuse

himself. Defendant alleged that Judge Komada could not

impartially rule on the ineffective assistance argument because

when Judge Komada was the State’s Attorney, Dedman had

worked for Judge Komada as an assistant State’s Attorney. Judge

Komada denied defendant’s request. Defendant asserts that the

relationship between Judge Komada and Dedman created a conflict

of interest that required Judge Komada’s recusal. Further, relying

upon People v. Brim, 241 Ill. App. 3d 245 (1993), defendant contends that Judge Komada’s improper refusal to recuse himself

rendered void all of Judge Komada’s subsequent actions.

Defendant concludes that, because the initial proceedings are void,

this successive petition is proper.

	A defendant in a post-conviction proceeding has no absolute

right to a substitution of judge. People v. Steidl, 177 Ill. 2d 239, 264 (1997). Unless the defendant can show that it would cause him

substantial prejudice, the same judge who presided over the

defendant’s trial should also preside over the post-conviction

proceedings. People v. Hall, 157 Ill. 2d 324, 331 (1993). Here, defendant’s only allegation that the judge was prejudiced was

based on the fact that Dedman once worked for the judge. It is well

established, however, that “[t]he mere fact that the judge has some

kind of relationship with someone involved in the case, without

more, is insufficient to establish judicial bias or to warrant a judge’s

removal from the case.” Steidl, 177 Ill. 2d at 264. In fact, that an attorney was once the judge’s law partner is insufficient, by itself,

to demonstrate bias. Steidl, 177 Ill. 2d at 263-64. Without some specific allegations or evidence to support a conclusion that Judge

Komada’s relationship with Dedman was so close or so involved

that Judge Komada could not fairly rule on defendant’s post-

conviction petition, we are unable to conclude that the mere fact

that Dedman once worked for Judge Komada required Judge

Komada to recuse himself. Because Judge Komada was not

required to recuse himself, no basis exists to support the conclusion

that the original proceedings were void.

DEFENDANT’S CLAIMS

	We turn now to the claims raised in defendant’s second-

amended petition.

Conflicts of Interests During Defendant’s Trial

	Defendant’s issues regarding the trial court’s and the

prosecutor’s alleged conflicts of interest during the trial are waived

because they could have been raised in defendant’s initial post-

conviction petition. See Flores, 153 Ill. 2d at 274. Defendant urges us to relax the waiver rule because the proceedings during his initial petition were fundamentally deficient. See Flores, 153 Ill. 2d at 273-74. In particular, defendant contends that he should be

permitted to argue that he was denied the effective assistance of his

attorneys on direct appeal. Defendant claims that this argument is

not waived because, during his initial post-conviction proceedings,

he was represented by the same attorneys who represented him on

direct appeal. See Flores, 153 Ill. 2d at 281-82 (explaining that it is unreasonable to expect counsel to raise and argue his own

incompetency).

	On direct appeal, defendant was represented by Charles

Schiedel and Lawrence Essig of the office of the State Appellate

Defender. During his initial post-conviction proceedings, defendant

was represented by Robert McIntire, the Vermilion County public

defender. The only evidence that defendant cites to support his

claim that Schiedel or Essig represented defendant during the initial

post-conviction proceedings is the following statement concerning

depositions that McIntire made during a hearing in the initial

proceedings:

		“I have discussed this with Mr. Schiedel, S-c-h-i-e-d-e-l,

and also Mr. Essig, who had previously been involved

with Mr. Wright’s direct appeal. And it is the judgment of

myself and those other two that the showing we have

made so far constitutes a prima facie case in support of the petition; or that, in the event that the Court were to

disagree with this and rule against us, that strategically

would not be–would not be of assistance to us to depose

[defendant’s trial counsel].”

	We disagree with defendant that this exchange demonstrates

that his appellate attorneys represented him during his initial post-

conviction proceedings such that the initial proceedings were

fundamentally flawed. The quoted language indicates only that

post-conviction counsel consulted with appellate counsel. We do

not believe that this is unreasonable conduct. In fact, a consultation

with an attorney familiar with the case would likely assist a

defendant’s post-conviction counsel in becoming familiar with the

facts and potential issues and would presumably lead to better and

more informed representation for the defendant. Further, we see no

reason that such a consultation would prevent post-conviction counsel from arguing that counsel on direct appeal was ineffective.

	Because the quoted language indicates only that post-

conviction counsel consulted with defendant’s appellate attorneys

and not that those attorneys represented him in his initial post-

conviction proceedings, we are unable to conclude that defendant’s

initial proceedings were so fundamentally flawed that he is entitled

to pursue a second post-conviction petition with respect to his

claims that his appellate counsel was ineffective.

Defense Counsel’s Failure to Argue that Defendant Was Guilty

but Mentally Ill

	Defendant also claims that his trial counsel was ineffective for

failing to investigate, argue, and introduce available evidence that

defendant should be found guilty but mentally ill. This issue could

have been raised during defendant’s initial post-conviction

proceedings. Consequently, it is waived.

Defense Counsel’s Failure to Introduce Defendant’s Mental

Health Records

	Defendant’s next allegation, that his trial counsel was

ineffective for failing to introduce certain mental health records

during defendant’s sentencing hearing, is barred by res judicata because we rejected essentially the same argument in Wright II. See Wright II, 149 Ill. 2d at 51.

The Trial Judge’s Conflict of Interest in Ruling on Defendant’s

Second Petition

	Defendant also contends that Judge Komada violated

defendant’s due process rights by ruling on defendant’s second

post-conviction petition. Defendant’s second post-conviction

petition alleged, in part, that during defendant’s trial and sentencing

hearing, Judge Komada was operating under a conflict of interest

because he knew the victim and because he had prosecuted

defendant for the armed violence conviction that the State used as

impeachment evidence during trial and as an aggravating factor

during sentencing. During the proceedings on defendant’s second post-conviction petition, defendant moved for a substitution of

judge, arguing that Judge Komada could not objectively rule on his

own alleged conflict of interest. That motion was heard by a

different judge, who denied the motion on other grounds and

without reaching Judge Komada’s conflict of interest in ruling on

the second petition. Defendant does not challenge the denial of that

motion. He argues instead that Judge Komada should have recused

himself from ruling on defendant’s second post-conviction petition.

	Relying primarily upon Murray v. Giarratano, 492 U.S. 1, 106 L. Ed. 2d 1, 109 S. Ct. 2765 (1989), and Pennsylvania v. Finley, 481 U.S. 551, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987), the State

argues that a defendant in a post-conviction proceeding has no due

process right to have his hearing held before an impartial judge. We

disagree with the State.

	While Murray and Finley support the proposition that, in a post-conviction proceeding, a defendant is not entitled to the full

panoply of constitutional rights that accompany an initial criminal

prosecution, this does not mean that a defendant in post-conviction

proceeding is not entitled to due process at all. A fair trial before

a fair tribunal is a basic requirement of due process. People v. Hawkins, 181 Ill. 2d 41, 50 (1998). This fairness “requires not only the absence of actual bias but also the absence of the probability of

bias.” Hawkins, 181 Ill. 2d at 50. The fairness requirement applies not only to criminal proceedings (Hawkins, 181 Ill. 2d at 50), but also to proceedings before administrative agencies and to other

civil court proceedings (Scott v. Department of Commerce & Community Affairs, 84 Ill. 2d 42, 54-55 (1981)). Further, in rare circumstances after a showing of bias or prejudice, the constitution

may require a judge in a post-conviction proceeding to recuse

himself. People v. Thompkins, 181 Ill. 2d 1, 22 (1998); see also Steidl, 177 Ill. 2d at 266 (holding that a judge had to recuse himself from presiding over the defendant’s post-conviction petition

because he was biased against some of defendant’s claims). Given

these holdings, we are unable to agree with the State that, in a

post-conviction proceeding, the due process clause (see Ill. Const.

1970, art. I, §2) does not guarantee a defendant a fair trial before

a fair tribunal.

	That, however, does not end our inquiry. A judge must recuse himself from ruling on a motion for substitution of judge for cause

only if the motion, on its face, contains specific allegations of

prejudice. People v. Johnson, 159 Ill. 2d 97, 123 (1994). Similarly, we believe that, when a judge is faced with a successive post-

conviction petition alleging a possible conflict of interest, the judge

need not recuse himself from considering the successive petition

unless the petition, on its face, demonstrates that the claims can be

properly raised in a successive post-conviction petition. Just as the

rule in Johnson is designed to ensure that motions for substitution are not frivolously made (Johnson, 159 Ill. 2d at 123), the requirement of a prima facie showing that the successive petition is proper ensures that a defendant is not able to obtain a

substitution of judge on an otherwise improper successive petition

simply by including allegations of a conflict of interest. Further, if

the successor petition is not facially proper, the trial court will not

consider the substantive merits of the underlying allegations and

therefore the question posing the potential conflict of interest will

never be reached.

	Here, defendant has failed to show that he could properly raise

any of the claims in his second post-conviction petition.

Consequently, Judge Komada had no need to reach the merits of

defendant’s allegations of a conflict of interest and was not

required to recuse himself. While the prudent course of action for

a judge faced with a potential conflict may be to recuse himself (see

People v. Wilson, 37 Ill. 2d 617, 621 (1967) (explaining that “in certain circumstances a trial judge should recuse himself when it

appears that he may be biased or may be a potential witness”)), we

do not believe that, on the facts presented, such an action was

constitutionally mandated.

CONCLUSION

	Because defendant could have raised or did raise each of the

underlying issues during his initial post-conviction proceedings, the

trial court properly dismissed defendant’s second post-conviction

petition.

	The judgment of the circuit court of Coles County is affirmed.

The clerk of this court is directed to enter an order setting Tuesday, January 25NEXG 28nexg====March 28,, 2000, as the date on which the sentence of

death entered by the circuit court shall be implemented. Defendant

shall be executed in the manner provided by law (725 ILCS

5/119–5 (West 1996)). The clerk of this court shall send a certified

copy of the mandate of this court to the Director of Corrections,

to the warden of Tamms Correctional Center, and to the warden

of the institution where defendant is confined.

Affirmed.

	JUSTICE BILANDIC, also specially concurring:

	I agree that the time limit in section 122–1 of the Post-

Conviction Hearing Act (Act) (725 ILCS 5/122–1 (West 1994)) is

a statute of limitations, and that the State waived its right to argue

that defendant’s petition is untimely by failing to raise the issue in

the trial court. I also agree that the issues raised in defendant’s

second post-conviction petition are waived or barred by res judicata. I write separately, however, to set forth the proper method of resolving the claims in this successive post-conviction

petition. As explained below, the “cause and prejudice” standard

provides the best means for determining whether to relax the

procedural bar in cases involving successive post-conviction

petitions.

	The Act contemplates the filing of only one post-conviction

petition. People v. Flores, 153 Ill. 2d 264, 273 (1992); People v. Free, 122 Ill. 2d 367, 375 (1988). A defendant, therefore, faces an immense procedural hurdle when bringing a successive post-

conviction petition. Section 122–3 of the Act provides that “[a]ny

claim of substantial denial of constitutional rights not raised in the

original or an amended petition is waived.” 725 ILCS 5/122–3

(West 1994); Flores, 153 Ill. 2d at 274; Free, 122 Ill. 2d at 375- 76. Furthermore, a ruling on an initial post-conviction petition has res judicata effect with respect to all claims that were raised or could have been raised in the initial petition. Flores, 153 Ill. 2d at 274; Free, 122 Ill. 2d at 376.

	In this case, defendant’s second post-conviction petition

alleges (1) that the judge for defendant’s trial and sentencing

hearing, as well as for both post-conviction proceedings, had a

conflict of interest because he had prosecuted defendant for the

armed violence conviction that the prosecution used as

impeachment evidence during trial and as an aggravating factor

during sentencing, and that defendant’s trial and appellate counsel

were ineffective for failing to raise the conflict issue; (2) that the

prosecutor had a conflict of interest because she was defendant’s

attorney in the armed violence case in which the trial judge

prosecuted defendant, and that defendant’s appellate counsel was

ineffective for failing to raise the issue; (3) that defendant’s trial

counsel was ineffective for failing to investigate, argue, and

introduce available evidence that defendant should be found guilty

but mentally ill; and (4) that defendant’s trial counsel was

ineffective for failing to investigate and present available mitigating

evidence of defendant’s mental deficiency and psychological

problems. Defendant has waived the first three of these claims by

failing to raise them in his first post-conviction petition. See 725

ILCS 5/122–3 (West 1994); Flores, 153 Ill. 2d at 274; Free, 122 Ill. 2d at 375-76. As to the fourth argument, this court already

rejected essentially the same argument on direct appeal from the

denial of defendant’s first post-conviction petition. See People v. Wright, 149 Ill. 2d 36, 51 (1992) (Wright II). This argument is therefore barred by res judicata. See Flores, 153 Ill. 2d at 274; Free, 122 Ill. 2d at 376.

	This court has, however, held that a successive post-

conviction petition may be considered where the proceedings on

the initial post-conviction petition were deficient in some

fundamental way. Flores, 153 Ill. 2d at 273-74; see also Free, 122 Ill. 2d at 376, citing People v. Hollins, 51 Ill. 2d 68, 70 (1972); People v. Nichols, 51 Ill. 2d 244, 246 (1972); People v. Slaughter, 39 Ill. 2d 278, 285 (1968). This court has held that the strict

application of procedural bars may be relaxed where “fundamental fairness” requires. Flores, 153 Ill. 2d at 274-75, citing People v. Gaines, 105 Ill. 2d 79, 91 (1984); Hollins, 51 Ill. 2d at 70; Slaughter, 39 Ill. 2d at 285. As this court has previously noted in the context of a first post-conviction petition, “fundamental

fairness” requires us to review procedurally defaulted claims in

collateral proceedings only when the defendant shows both “cause”

for failing to raise the error earlier and “prejudice” resulting from

the error. People v. Owens, 129 Ill. 2d 303, 317-18 (1989), citing Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977). Likewise, in the specific context of a successive post-

conviction petition, this court has in the past equated the concept

of fundamental fairness with the cause and prejudice standard.

Flores, 153 Ill. 2d at 278-80; see also People v. Whitehead, 169 Ill. 2d 355, 407 (1996) (Miller, J., specially concurring); People v. Szabo, 186 Ill. 2d 19, 42-44 (1998) (Freeman, C.J., specially concurring, joined by Heiple, J.).

	Moreover, federal courts use the cause and prejudice standard

when evaluating successive habeas corpus actions. See, e.g., McCleskey v. Zant, 499 U.S. 467, 493-94, 113 L. Ed. 2d 517, 544- 45, 111 S. Ct. 1454, 1470 (1991). Consequently, this court in

Flores looked to United States Supreme Court decisions in defining the terms “cause” and “prejudice” in the context of a

successive post-conviction petition. The Supreme Court has

defined “cause” as an objective factor that impedes an attorney’s

ability to raise a claim in an earlier proceeding. Flores, 153 Ill. 2d at 279, citing McCleskey, 499 U.S. at 493, 113 L. Ed. 2d at 544, 111 S. Ct. at 1470. “Prejudice” has been defined as an error which

infects the entire trial to such a degree that the resulting conviction

violates the defendant’s due process rights. Flores, 153 Ill. 2d at 279, citing McCleskey, 499 U.S. at 493-94, 113 L. Ed. 2d at 544, 111 S. Ct. at 1470. This court has stated that the cause and

prejudice test “is similar to, and accomplishes no more than, our

fundamental fairness concept.” Flores, 153 Ill. 2d at 279.

	Application of the cause and prejudice test to this case reveals

that defendant remains procedurally barred from bringing this

second post-conviction petition. Defendant has failed to sufficiently

allege cause for failing to raise these claims earlier, and he has

failed to sufficiently allege prejudice resulting from the alleged errors. Defendant argues as to each issue that fundamental fairness

dictates that this court address his claims. In this regard, however,

defendant merely claims that the attorneys who represented him on

direct appeal were the same attorneys who represented him during

the initial post-conviction proceedings. This court has implicitly

recognized that a defendant may show cause for failing to raise in

a first post-conviction petition an ineffective assistance of appellate

counsel claim, where the same attorneys who represented

defendant on direct appeal also represented defendant during the

initial post-conviction proceedings. See Flores, 153 Ill. 2d at 281- 82. This situation establishes cause because it would be

unreasonable to expect counsel to argue his or her own

incompetency. Flores, 153 Ill. 2d at 282.

	In any event, as the majority discusses, the record refutes

defendant’s claim that the attorneys who represented defendant on

direct appeal were the same attorneys who represented defendant

during the initial post-conviction proceedings. On direct appeal,

defendant was represented by attorneys from the office of the State

Appellate Defender. During the trial court proceedings on

defendant’s first post-conviction petition, however, the Vermilion

County public defender represented defendant.

	As a final matter, defendant also appears to argue that

fundamental fairness requires us to consider his second post-

conviction petition because the judge for defendant’s trial,

sentencing hearing, and both post-conviction proceedings should

have recused himself from ruling on defendant’s first post-

conviction petition. According to defendant, the judge could not

impartially rule on defendant’s first post-conviction petition

because the petition included an allegation that one of defendant’s

trial attorneys was ineffective, and that this attorney had previously

worked for the judge as an assistant State’s Attorney when the

judge was the State’s Attorney. As the majority discusses, the

judge was not required to recuse himself. The mere fact that a

judge has a relationship with an attorney involved in the case is not

sufficient to establish bias. See People v. Steidl, 177 Ill. 2d 239, 264 (1997). Thus, this argument in no way warrants a relaxation

of the procedural bar in this case.

	For the foregoing reasons, I concur in the ultimate resolution of this case. I write separately to explain that the cause and

prejudice standard provides the best means for determining

whether to relax the procedural bar in cases involving successive

post-conviction petitions.

	CHIEF JUSTICE FREEMAN, also specially concurring:

	I strongly disagree with the conclusions reached in today’s

opinion, particularly that which holds that section 122–1 of the

Post-Conviction Hearing Act is a statute of limitation that can be

waived by the State on appeal if not first raised in the circuit court.

Because I cannot concur in my colleagues’ decision on this point,

I join only in the judgment of the court.

I

	Section 122–1 of the Act states that no proceedings can be

commenced under the Act after the passage of certain enumerated

periods of time, unless the petition “alleges facts showing that the

delay was not due to [the petitioner’s] culpable negligence.” 725

ILCS 5/122–1 (West 1994). The dispositive question in this case

is what happens when both the State and the circuit judge fail to

notice that a filed post-conviction petition does not comply with

the above requirement and the issue is raised for the first time on

appeal from an order of dismissal. The court rejects the State’s

argument that this section is jurisdictional in nature and, instead,

concludes that section 122–1 constitutes a statute of limitation that

is waived by the State if not raised in the circuit court. In so doing,

my colleagues concede that the present petition was untimely filed

and lacked the allegations that would excuse untimeliness as

required by the General Assembly. Notwithstanding this

defendant’s failure to meet the affirmative obligation placed upon

him by our legislature, the court concludes that the State cannot

raise this issue on appeal because the State did not raise the issue in the circuit court. The effect of this seemingly benign holding is

the possibility that a circuit court can, in the future, grant post-

conviction relief even though a defendant has never alleged a lack of culpable negligence in his or her untimely petition as required by the General Assembly in section 122–1. With respect, I cannot

join in a holding that permits such a result.

	The question raised here, in my opinion, is best answered by

recognizing that section 122–1 confers the circuit court with

jurisdiction to grant post-conviction relief if either the time

provisions are complied with or defendant has alleged justification as to why those provisions were not met. As such, section 122–1

constitutes a condition precedent to the right to bring the statutory

action, which relates to subject matter jurisdiction. Subject matter

jurisdiction is conferred on courts by the Constitution or by

legislative enactment. Fredman Brothers Furniture v. Department of Revenue, 109 Ill. 2d 202, 210 (1985); Knaus v. Chicago Title & Trust Co., 365 Ill. 588, 592 (1937). Subject matter jurisdiction cannot be waived, stipulated to, or consented to by the parties. The

lack of subject matter jurisdiction may be raised at any time, in any

court, by the parties or on the court’s own motion. See Currie v. Lao, 148 Ill. 2d 151, 157 (1992). This court has noted that “when a court is in exercise of special statutory jurisdiction, that

jurisdiction is limited to the language of the act conferring it and

the court has no powers from any other source.” Fredman, 109 Ill. 2d at 210, citing Central Illinois Public Service Co. v. Industrial Comm’n, 293 Ill. 62, 65-66 (1920). Furthermore, “if the mode of procedure prescribed by statute is not strictly pursued, no

jurisdiction is conferred on the circuit court.” Fredman, 109 Ill. 2d at 210, citing Demchuk v. Duplancich, 92 Ill. 2d 1, 6-7 (1982); Avdich v. Kleinert, 69 Ill. 2d 1, 6 (1977); Fitzgerald v. Quinn, 165 Ill. 354, 360 (1896). Without subject matter jurisdiction, a court’s

only function is to announce the fact that it lacks jurisdiction and

dismiss the cause. River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290, 306 (1998), citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 140 L. Ed. 2d 210, 118 S. Ct. 1003 (1998). In other words, absent subject matter jurisdiction, a court

lacks the legal authority to adjudicate the controversy put before

it. In the case of the Act, this means that the court is unable to adjudicate whether the petitioner was convicted in a proceeding in

which there was a substantial denial of a federal or state

constitutional right. This view is supported by both the history of

the Act and the precedent of this court.

	At common law, a collateral challenge to a criminal conviction

was recognized as an action for writ of coram nobis. In 1867, this court observed that “[t]his old writ [coram nobis] has never been in use in this State, and it has fallen into desuetude even in

England. Its place is most effectually supplied by the more

summary proceedings, by motion in the court where the error in

fact occurred.” McKindley v. Buck, 43 Ill. 579, 582 (1867). Shortly thereafter, the General Assembly expressly abolished the

common law coram nobis action. See People v. Touhy, 397 Ill. 19, 23-24 (1947) (explaining history of the abolition of the writ). The

legislature replaced the common law writ, not with the Act, but

with a statutory remedy which can be presently found in section

2–1401 of the Code of Civil Procedure. See 735 ILCS 5/2–1401

(West 1994); Touhy, 397 Ill. at 23-24. It was not until 1949 that the General Assembly enacted the Act. Ill. Rev. Stat. 1949, ch. 38,

par. 826 et seq. See also A. Jenner, The Illinois Post-Conviction Hearing Act, 9 F.R.D. 347 (1949) (setting forth a detailed history of the Act). The legislature created this new remedy in response to

criticisms regarding the available methods by which a judgment of

conviction could be attacked in Illinois. See People v. Slaughter, 39 Ill. 2d 278 (1968); People v. Erickson, 161 Ill. 2d 82, 107 (1994) (McMorrow, J., dissenting, joined by Harrison, J.). Along

with the statutory coram nobis remedy (section 2–1401) and the statutory habeas corpus remedy, the Act provides convicted persons in this state with the opportunity to mount a collateral

attack upon a final criminal judgment. J. Decker, “Last Chance” State Judicial Review in Criminal Cases–Illinois’ Collateral

Attack Remedies: A Call For Principled Jurisprudence, 38 DePaul L. Rev. 201 (1988). This court, long ago, noted that the purpose

of the Act “is to provide a single procedure by which persons

within the class specified can obtain a hearing upon the question of

whether they were denied due process of law.” People v. Dale, 406 Ill. 238, 243 (1950). The Act is designed to afford an appropriate

remedy for one who asserts that a conviction was obtained in proceedings in which there was a denial of his or her rights under

the federal constitution or the Illinois Constitution. People v. Morris, 3 Ill. 2d 437, 443-44 (1954).

 	The foregoing history demonstrates that the Act is a legislative creation with no antecedent in the common law. In light of this

fact, the Act should be deemed purely a statutory cause of action,

and its requirements should be interpreted in that light. In special

statutory proceedings, jurisdiction is acquired only in the manner

“pointed out” by the statute. People ex rel. Kilduff v. Brewer, 328 Ill. 472, 480 (1927). The time provision contained in section

122–1, viewed in its entirety, constitutes a condition of the right to

maintain the statutory action–not a statute of limitation–and is,

therefore, jurisdictional in nature. See Brown v. Box, 38 Ill. 2d 80, 82 (1967) (deeming limitation provision in Paternity Act

jurisdictional). A jurisdictional limitations period is an absolute

requirement; it is not an affirmative defense that is subject to

waiver or estoppel. Section 122–1 clearly contemplates that a

timely filed petition or an untimely petition that contains allegations which establish that the delay in filing was not due to the

petitioner’s culpable negligence must precede the institution of the action. As this court has explained in the past, when addressing a

similar question raised with respect to the Wrongful Death Act,

		“Unlike the general Statute of Limitations, this special

statute creating the right and giving the remedy does not merely confer the privilege upon the defendant to

interpose a definite time limitation as a bar to the

enforcement of a distinct and independent liability, but it

defines and limits the existence of the right itself. In the one case the statute furnishes defendant with a technical

defense to which he may resort or not, as he sees fit, while

in the other it gives the plaintiff a right conditioned upon

its enforcement within a definite time. Hence, while the

defendant must plead the general Statute of Limitations or

give notice by setting it out in a brief statement under the

general issue in order to be protected by it, the reasoning

that leads to that result as a matter of pleading has no

application when *** the statute confers upon the plaintiff

a peculiar right which, if not exercised, ceases to exist by its own limitation.” (Emphasis added.) Hartray v. Chicago Rys. Co., 290 Ill. 85, 87 (1919).

	This court has consistently recognized that the legislature,

having conferred a right of action, “may determine who shall sue

and the conditions under which the suit may be brought.” (Emphasis added.) Wilson v. Tromly, 404 Ill. 307, 310 (1949). We have also consistently adhered to the notion that our General

Assembly may attach conditions to the relief it creates. See Wilson, 404 Ill. 2d at 311. That being the case, it is the party seeking the

statutorily created relief who must “ ‘bring himself within the

prescribed requirements necessary to confer the right of action.’ ”

Wilson, 404 Ill. at 311, quoting Hartray v. Chicago Rys. Co., 290 Ill. 85, 87 (1919).

	Section 122–1 expressly provides that no proceedings may be

commenced after the passage of certain enumerated time periods

“unless the petitioner alleges facts showing that the delay was not

due to his culpable negligence.” 725 ILCS 5/122–1 (West 1994).

In other words, section 122–1 establishes what a petitioner must

do in order to “ ‘set the court in motion.’ ” Brewer, 328 Ill. at 481. The General Assembly, by placing the burden on defendant to

plead himself within the purview of the statute in order to obtain

relief, has, therefore, not seen fit to make the lack of timeliness an

affirmative matter that must be raised by the State in order to bar

the remedy. The burden, having been placed on the petitioner by

the General Assembly, rests on the petitioner, and if the petition is

deficient in this respect, the court, sua sponte, must dismiss it. Simply put, if a petitioner does not meet this affirmative burden,

the circuit court cannot, as a matter of law, entertain the petition

and cannot grant the requested relief, no matter how meritorious

the asserted constitutional deprivation may be.

	Support for this position can be found in People v. Montgomery, 45 Ill. 2d 94 (1970). There, the defendant filed an untimely petition, claiming that the delay was due to his mental

illness. The circuit judge specifically found that the mental illness

claimed by defendant in his petition, and supported by the affidavits

attached to it, did not satisfactorily excuse defendant’s delay in

filing the petition. Nevertheless, the judge ultimately considered the

merits of the petition and based his order of dismissal on the merits of defendant’s claims. In affirming the order of dismissal, this court

stated that, notwithstanding the circuit court’s dismissal on the

merits, the “threshold issue *** must *** be whether Montgomery

was barred from proceeding under the Act by virtue of his

extended delay in filing, since no relief may be granted on the merits unless the petition is cognizable under the statute.” (Emphasis added.) Montgomery, 45 Ill. 2d at 96.3 The court thus looked to defendant’s allegations regarding his lack of culpable

negligence and found them insufficient, concluding that it was “of

the opinion that the petition for relief was properly dismissed,

without further hearings, under the applicable limitations

provision.” Montgomery, 45 Ill. 2d at 96. Significantly, nowhere in the Montgomery opinion does the phrase “statute of limitations” appear. Instead, the court referred to section 122–1 as a

“limitations provision” and spoke in terms of a petition’s

“cognizability” under the statute. Such references, in my view,

demonstrate that, up until today at least, this court has implicitly

given section 122–1 a jurisdictional construction.

	Notwithstanding the above, my colleagues rely on People v. Bates, 124 Ill. 2d 81 (1988), as authority for the proposition that section 122–1 constitutes a statute of limitations. Bates, however, did not address the precise issue which we are presented with

today, namely, whether the time limitation contained in section

122–1 is jurisdictional or whether it is a statute of limitation.

Rather, the court in Bates considered whether an amendment to section 122–1 that shortened the time within which to file a

petition under the Act could be applied retroactively. This

distinction is critical. The court determined that the amendment had

retroactive application and that the dismissal of the petition, which

did not include allegations regarding the lack of culpable

negligence, required affirmance. In so holding, the court looked to

an earlier case, Orlicki v. McCarthy, 4 Ill. 2d 342 (1954), in which a similar question was raised with respect to the Dramshop Act.

The court reasoned, as did the court in Orlicki, that

			“the legislature, having created rights of action under

[the Acts], had the corresponding power to repeal those

rights. In other words, persons had no ‘vested’ rights in

statutory remedies. [Citation.] Moreover, the power to

repeal statutory enactments includes the lesser power to

impose or modify time limitations for bringing actions

under such acts.” Bates, 124 Ill. 2d at 85.

My colleagues today seize upon the sentence which immediately

follows the above quotation for its conclusion that section 122–1

is a statute of limitation: “Finally, it was noted that statutes of

limitation have historically been classified as procedural in

character, and that procedural amendments are generally applied

retroactively.” Bates, 124 Ill. 2d at 85. However, the Orlicki decision, relied on heavily in Bates, contains a detailed discussion concerning the propriety of retroactive application of amendments

to jurisdictional “conditions of liability” which were of a procedural

nature. See Orlicki, 4 Ill. 2d at 350-53. Moreover, the court in Bates declined to extend, equitably, the statutory time period for the defendant whose petition was both untimely and lacking in

allegations regarding lack of culpable negligence. Bates, 124 Ill. 2d at 86-88. “Because [the] petition was not accompanied by any such

allegations [regarding culpable negligence], we find that his

petition must be dismissed as untimely.” Bates, 124 Ill. 2d at 88. In this way, the result reached in Bates is consistent with the principles espoused in Montgomery. Given the fact that the court in Bates was not concerned with the narrow question raised by the parties in this case, I do not find its generic use of the term “statute

of limitations” persuasive authority for the court’s conclusion that

the circuit court had jurisdiction to entertain defendant’s petition.

	Yet, even if I were to agree that the time provision contained

in section 122–1 should be labeled a “statute of limitations,” I

would still consider the provision to be jurisdictional. As the

Seventh Circuit Court of Appeals has aptly noted, “some statutes

of limitations are jurisdictional.” Smith v. City of Chicago Heights, 951 F.2d 834, 838 (7th Cir. 1992) (interpreting Illinois law). This

court, too, has stated as much. Statutes of limitation only fix the

time within which the remedy for a particular wrong may be sought

and, as such, are “ ‘procedural in nature [citations] and are not designed to alter substantive rights.’ ” Fredman, 109 Ill. 2d at 209, quoting Wilson v. Bishop, 82 Ill. 2d 364, 373 (1980). In contradistinction, “statutes which create a substantive right

unknown to the common law and in which time is made an inherent

element of the right so created, are not statutes of limitation.

[Citations.] Such a time period ‘is more than an ordinary statute of

limitation.’ ” Fredman, 109 Ill. 2d at 209, quoting North Side Sash & Door Co. v. Hecht, 295 Ill. 515, 519 (1920).

	The history of the Act, as I have set forth above, supports the

application of these principles to the case at bar. The Act is a

departure from the common law. Moreover, section 122–1 plainly

states that no proceedings may be commenced after the passage of

the enumerated time periods “unless the petitioner alleges facts

showing that the delay was not due to his culpable negligence.”

725 ILCS 5/122–1 (West 1994). Thus, a petitioner must do one or

the other, i.e., be timely or allege the lack of culpable negligence, in order to commence a proceeding under the Act. The court today

seems to be unable or unwilling to accept that section 122–1 is but

a single sentence. The phrase which contains the time limits must

be construed in tandem with the phrase that excuses delay if due to

a lack of culpable negligence. Time, therefore, is an inherent element of the right to the extent that, without allegations of facts

which show that the delay was not due to petitioner’s culpable

negligence, no proceeding may be commenced under the Act.4 Statutes such as section 122–1 “set forth the requirements for bringing the right to seek a remedy into existence. They do not

speak of commencing an action after the right to do so has

accrued. They are jurisdictional, not mandatory.” Fredman, 109 Ill. 2d at 210. This has been the conclusion reached by two districts of

our appellate court (see People v. Caraballo, 304 Ill. App. 3d 288 (3d Dist. 1999); People v. Stenson, 296 Ill. App. 3d 93 (3d Dist. 1998); People v. Heirens, 271 Ill. App. 3d 392 (1st Dist. 1995)), and should be our decision today.

	My colleagues and I obviously disagree with respect to the

applicability of Bates to this question and to the issue of whether time is an “inherent” element of the right to post-conviction relief.

Slip op. at 4-5. I am willing to acknowledge that judges can and do

disagree over the proper application of precedent when resolving

questions on appeal, just as they can disagree over subjective

concepts such as the inherence or importance of a certain element

in a statute. However, in such cases, other judicial considerations

usually emerge which justify the necessity of adopting one

approach over another. And so it is in this case. The Act clearly

places a burden upon the petitioner at the outset to allege facts establishing his or her lack of culpable negligence. Accordingly, it

appears that the General Assembly did not intend to make this

provision an affirmative matter to be raised by the State in order to

bar the remedy. In other words, it is the petitioner who must

affirmatively raise the lack of culpable negligence issue in order to

avoid dismissal. Nevertheless, the court asserts that it does

		“not believe that this requirement [of alleging facts which

show the lack of culpable negligence in the delay] allows

the State to wait until an appeal to raise an affirmative defense that the defendant may be able to avoid by amending his petition.” (Emphasis added.) Slip op. at   7.

Thus, the court has transformed defendant’s affirmative burden to

raise the lack of culpable negligence into an affirmative defense to

be raised by the State. In my view, this amply illustrates the reason

why we ought not to construe section 122–1 as a statute of

limitation that can be waived by the State. The judiciary simply

lacks the authority to transform an affirmative burden, placed upon

the petitioner by the General Assembly, into an affirmative defense

to be pleaded by the State. My colleagues appear to choose this course of action because they are obviously troubled by the fact

that this defendant might have been able to allege the requisite lack

of culpable negligence in an amendment had the State raised the

issue in the trial court. See slip op. at 7 (noting that the State here

“effectively precluded the defendant from seeking to amend his

petition to include allegations that he was not culpably negligent in

filing his petition”). The concern, therefore, is that section 122–1

has the potential to become a “trump card” of sorts in the hands of

the prosecutor. However, section 122–1 is rendered a trump card

only because the court today insists on interpreting the provision

as a “statute of limitations” that should not “be treated different

from any other.” Slip op. at 7. If section 122–1 were to be deemed

jurisdictional, a petitioner whose untimely petition is dismissed for

lack of jurisdiction could return to the circuit court and attempt to

take advantage of the “safety valve” by filing a new petition which

contains the requisite allegations concerning the lack of culpable

negligence. Such a successive petition would not be barred by the

doctrine of res judicata because a dismissal for lack of jurisdiction does not constitute an adjudication on the merits. Under this

approach, the action would proceed in a way that is consistent with

the language of the Act (the petitioner must allege and establish his

or her lack of culpable negligence for the delay as required under

the Act), and the State has not been allowed to “trump” the truly

nonculpably negligent petitioner from the opportunity to seek

collateral review under the Act.

	Further, if a petitioner’s failure to allege the lack of culpable

negligence could easily be rectified by amendment, as the court

intimates, why then does the court not remand this cause to the

circuit court with instructions to allow defendant the opportunity

to file an amendment and meet the burden placed upon him by the

General Assembly? If the matter is not one of jurisdiction, as the

court holds, then there is no legal impediment to preclude such an

option in this case. Such a course of action would, in fact, be

consistent with the court’s stated belief that petitioners under the

Act “should plead facts demonstrating [their] lack of culpable

negligence.” Slip op. at 7. The court, however, cannot avail itself

of a remand alternative because it has decided that section 122–1

operates as an ordinary statute of limitation. Thus, the court leaves itself with no choice but to completely excuse this defendant from

complying with the General Assembly’s requirement that his

petition contain allegations which demonstrate the lack of culpable

negligence in the delay. This result will doubtless provide

“incentive” to the State to raise the timeliness question (slip op. at

7), but it provides petitioners with little incentive to comply with

the Act itself. Moreover, this result also has the potential to allow

for the possibility that a circuit court can, in the future, grant post-

conviction relief even though a defendant has never alleged a lack of culpable negligence in his or her untimely petition as required by the General Assembly in section 122–1. Ultimately, it is these

considerations and not the applicability of Bates that, in my view, strongly undermine the court’s resolution of this issue. I believe

that this court lacks the power to make these types of substantive

revisions to the Act; therefore, the only legally justifiable

conclusion to the question raised in this case is the

acknowledgment that section 122–1 is jurisdictional.

	Today’s decision has additional ramifications that must be

addressed. Section 122–1, which precedes all other provisions in

the Act, plainly states that no proceeding may be commenced under the Act unless the petition is either timely or else contains

affirmative allegations that demonstrate the petitioner’s lack of

culpable negligence in causing the delay. The requirement has been

placed on all petitioners, whether they are serving a sentence of

imprisonment or are under a sentence of death. The Act, however,

requires the circuit court, in a noncapital case, to evaluate a

petition in order to determine whether it is frivolous or patently

without merit. See 725 ILCS 5/122–2.1(a)(2) (West 1996). This

determination is to be made by the court without any input from

the State. See 725 ILCS 5/122–5 (West 1996). If the petition is

both untimely and fails to contain the required allegations

concerning the lack of culpable negligence, should not the circuit

court dismiss it pursuant to section 122–2.1? After all, such a

petition would be deficient as a matter of law, as it is both untimely

and utterly lacking in the requisite allegations that would serve to

excuse the delay. Must the circuit court in such situations overlook

the fact that the petition fails to comply with section 122–1 and

therefore order it docketed for a response from the State? The principles relied on in today’s opinion strongly suggest that the

judge, in such a situation, must remain mute with respect to the

petition’s deficiency and must docket it so that the State can raise

the issue, as an “affirmative defense.” Under today’s opinion, it

appears that the court in these situations cannot, sua sponte, raise the matter.

	 Nevertheless, Notwithstanding the above, my colleagues

			“caution that we are not limiting the trial court’s ability,

during the court’s initial review of noncapital petitions

(see 725 ILCS 5/122–2.1(a)(2) (West 1998)), to dismiss

the petition as untimely. The import of our decision is

simply that matters relating to the timeliness of a

defendant’s petition should be first considered in the trial

court, either upon a motion by the State or pursuant to the

duty imposed upon the trial court by section

122--–2.1(a)(2).” Slip op. at 7.

I am puzzled by these statements. As noted, the Act permits the

circuit court to dismiss a noncapital petition without any input from

the State whatsoever. If, as my colleagues today hold, the lack of

allegations regarding culpable negligence can only be raised by the

State, and not a court, then how can a trial judge ever dismiss an

untimely petition on his or her own motion, pursuant to the duty

imposed upon the trial court by section 122--–2.1(a)(2)? I read

today’s opinion as holding that section 122--–1 is to be treated as an

ordinary statute of limitation, i.e., an affirmative defense, and not as a jurisdictional prerequisite.   Therefore, in non-capital In such cases, the

untimely petition that lacks culpable negligence allegations must be

docketed in order to allow the State to put the culpable negligence

matter at issue as an affirmative defense. In a sense, my colleagues are correct to say that they are not “limiting” the trial court’s ability to dismiss petitions as untimely for they have not merely “limited” that ability, but rather, they have completely taken that ability away from the trial judge.  I am confused, therefore,

by the court’s statement that it is not “limiting” the trial court’s

initial review of petitions in non-capital cases.  The court today

clearly is holding that, this capital petitioner’s failure to plead the

requisite lack of culpable negligence must be raised by the State as

an affirmative defense, because section 122--–1 is not jurisdictional.

If the court is correct in its analysis of this question, then the non-

capital petitioner’s failure to plead the requisite lack of culpable

negligence in filing an untimely petition should likewise be an

affirmative defense because section 122--–1 reof the Act quirein all cases brought under the Act as the Act requires all petitioners to be timely or else demonstrate that the delay was not

due tohe their culpable negligence. Therefore, today’s holding does, in fact, “limit” the circuit court’s ability to dismiss an untimely

petition during its initial review pursuant to section 122--–2.1(a)(2)

of the Act.   Although my colleagues caution that this is not so, their

position on this matter is inconsistent with ose cautions cannot be reconciled with their analysis of the

jurisdictional question.  I bleielieve tThis inconsistency render’ss the curtoruurt’s

conclusion on thise issue ultimately unpersuasive.    iIiIn  that tThe court’s resolution of the this question improperly disrupts the procedural dictates contemplated by the General Assembly, and it is for this reason, among others, that I find the court’s conclusion unpersuasive.  In  my view, the overall structure of the Act indicates that the legislature intended

for the courts to be able to dismiss deficient untimely petitions that lack the

requisite allegations regarding the lack of culpable negligence on

their own motion, without input from the State at any time in both

capital and non-capital cases. The court today has succeeded in

changing the petitioner’s affirmative burden into an affirmative

matter to be raised by the State, and the State alone, in a way that

is contrary to the plain language of the Act. For this reason, I

would refrain from adopting the approach endorsed by my

colleagues.

	In light of the above, I would hold that if a petitioner does not

timely file a post-conviction petition and does not allege the lack

of culpable negligence for the delay, the court cannot entertain the

proceeding. In my view, section 122–1 defines jurisdiction and

constitutes a condition precedent to the bringing of the statutory

action. Therefore, it is incumbent on the defendant to comply with

it, and it is equally essential that the courts take notice of the issue

even when the State does not. Courts, at every level, have an

obligation to raise the lack of jurisdiction sua sponte and to dismiss a pending action whenever it becomes apparent that jurisdiction

does not exist. I, therefore, would affirm the circuit court’s

dismissal on the basis that the court lacked jurisdiction to entertain

the petition.

II

	Although I would affirm the circuit court’s dismissal for the

reasons set forth in section I of my concurrence, the court today

does not. Rather, the court ultimately concludes that no basis exists

to disturb the circuit court’s judgment because defendant'’s second

post-conviction petition was not “"properly brought."  has not demonstrated “why his second

postconviction petition is proper.” Slip op. at 138. I recognize that, in light of my position on the jurisdictional

question, I need not address these points. Nevertheless, I believe

that the court’s analysis is not clear in setting forth the standards

against which multiple post-conviction actions are judged.

	Defendant’s initial justification as to why he believes that he

can raise these claims in this petition is based on People v. Brim, 241 Ill. App. 3d 245 (1993). Yet, he also maintains, in the

alternative, that the proceedings during his initial post-conviction

action were “fundamentally deficient.” The genesis of this

argument can be found in language that has routinely appeared in

all of our decisions which deal with successive post-conviction

petitions, i.e., that such petitions are allowed if or when the proceedings on the original petitions were said to be “deficient in

some fundamental way.” See slip op. at 8; People v. Erickson, 183 Ill. 2d 213, 223 (1998); People v. Szabo, 183 Ill. 2d 19, 23 (1998); see also People v. Flores, 153 Ill. 2d 264, 273-74 (1992) (and cases cited therein).

	Our case law holds that a ruling on an initial post-conviction

petition has res judicata effect with respect to claims that were raised or could have been raised in the initial petition. People v. Free, 122 Ill. 2d 367 (1988). However, as noted above, this court has allowed successive petitions when the proceedings on the

original petitions were said to be deficient in some fundamental

way. In Flores, this court attempted to attach some objective meaning to the amorphous phrase “deficient in some fundamental

way.” A careful reading of our opinion reveals that the phrase

speaks to the notion that the initial proceeding could not have

allowed the opportunity for the claims raised in the successive

petition to have been heard in that initial forum. Flores, 153 Ill. 2d at 274-75. We noted that, in such cases, the ordinary procedural

bars that are at play in collateral actions “may be ineffectual in

bringing about that finality which ordinarily follows direct appeal

and the first post-conviction proceeding.” Flores, 153 Ill. 2d at 275. The court then undertook a thorough examination of the

various types of claims a defendant may attempt to bring in a

successive petition. Claims which attempt to seek relief from

ineffective assistance of post-conviction counsel in the first

proceeding are beyond the scope of the Act and cannot form the basis for relief in a successive action. Flores, 153 Ill. 2d at 275-77. Ineffective assistance of counsel claims which could not have been

raised in the prior proceeding, however, required a different

analysis. Flores, 153 Ill. 2d at 277-80. We acknowledged that concerns of “fundamental fairness” colored the inquiry into when

the procedural bar could be relaxed in such cases and specifically

noted that the federal “cause and prejudice” standard works to

accomplish the same goal. Flores, 153 Ill. 2d at 278-79. Under this analysis, the court concluded that constitutionally ineffective

representation that could not have been raised in the initial post-

conviction proceeding was “cause”, and such a claim could be

considered in a successive proceeding. Flores, 153 Ill. 2d at 279- 80. The court also recognized that “cause” is satisfied by

constitutionally ineffective assistance of counsel on direct appeal

where attorneys were the same on direct appeal and in the prior

collateral proceeding. Flores, 153 Ill. 2d at 279-80. See also Erickson, 183 Ill. 2d at 228 (holding that, in a successive petition post-conviction petition, one claim of ineffective assistance of

direct appellate counsel could be considered because counsel was

the same on direct appeal and on the first post-conviction

proceeding). We further acknowledged that, even in the absence of

cause and prejudice, a court may, “nonetheless, entertain

successive claims if necessary to prevent a fundamental miscarriage

of justice.” Flores, 153 Ill. 2d at 279. The court went on to address, on their merits, defendant Flores’s claims regarding

ineffective assistance of appellate counsel. The court, however,

found defendant’s third claim, which was not based on ineffective

assistance of counsel, barred by res judicata. Flores, 153 Ill. 2d at 280-81.

	Our precedent, therefore, teaches that successive post-

conviction petitions must be examined in detail to see if the claims

asserted in them are truly barred by res judicata. To that end, each claim in a successive petition must be reviewed individually in

order to first ascertain whether the claim is barred by res judicata. See Erickson, 183 Ill. 2d 213. If the claim is found to be barred, the court must then determine whether some reason exists to

excuse the bar so as to permit the court to reach the merits of the

claim. As I noted above, this court, in Flores stated that the inquiry into whether a procedural bar will be relaxed in the context of

successive petitions turns upon considerations of “fundamental

fairness.” This court’s position on what constitutes “fundamental

fairness” was thoroughly set forth in People v. Owens, 129 Ill. 2d 303, 317-18 (1989) and bears repeating today:

		“Where fundamental fairness requires, the rule of waiver

will not be applied in post-conviction proceedings.

[Citations.] The Supreme Court in Wainwright v. Sykes (1977), 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497,

described when it would be necessary for a court to

consider the fundamental fairness principle when the

prosecutor relies on a claim of waiver. There the Court

held that ‘fundamental fairness’ requires courts to review

procedurally defaulted claims in collateral proceedings

only when a defendant shows cognizable ‘cause’ for his

failure to make timely objection, and shows ‘actual

prejudice’ flowing from the error now complained of.”

Owens, 129 Ill. 2d at 317.

The court in Owens went on to evaluate Owens’ claims using the same cause and prejudice standard as that employed by the federal

courts in habeas corpus proceedings.

	Although Owens does not speak to the cause and prejudice standard in the context of a successive petitions under the Act, it

does establish that this court has, in the past, equated the term

“fundamental fairness” with the cause and prejudice standard. See Flores, 153 Ill. 2d at 278-80 (equating the standard with the concept of “fundamental fairness” in the context of successive

petitions under the Act). See also People v. Whitehead, 169 Ill. 2d 355, 407 (1996) (Miller, J., specially concurring); Szabo, 186 Ill. 2d at 42-43 (Freeman, C.J., specially concurring, joined by Heiple,

J.).

	In my opinion, the time has come for this court to reaffirm

these principles in the context of successive petitions for post-

conviction relief brought under the Act.5 As I stated in my special concurrence in Szabo, the cause and prejudice standard provides the best means for determining whether fundamental fairness

dictates the relaxation of the procedural bar in cases involving

multiple petitions for post-conviction relief. In fact, the federal

courts utilize the very same standard when evaluating successive habeas corpus actions, actions that the federal courts disfavor in much the same way Illinois courts disfavor successive post-

conviction actions. In McCleskey v. Zant, the United States Supreme Court held that, in order to excuse the failure to raise the

claim in an earlier habeas proceeding, a petitioner

		“must show cause for failing to raise it and prejudice

therefrom as those concepts have been defined in our

procedural default decisions. The petitioner’s opportunity

to meet the burden of cause and prejudice will not include

an evidentiary hearing if the district court determines as a

matter of law that petitioner cannot satisfy the standard.”

McCleskey v. Zant, 499 U.S. 467, 494, 113 L. Ed. 2d 517, 545, 111 S. Ct. 1454, 1470 (1991).

The above standard is, as the United States Supreme Court has

observed, an “objective one” which provides a “ ‘sound and

workable means of channeling the discretion’ ” (McCleskey, 499 U.S. at 496, 113 L. Ed. 2d at 546, 111 S. Ct. at 1471, quoting

Murray v. Carrier, 477 U.S. 478, 497, 91 L. Ed. 2d 397, 414, 106 S. Ct. 2639, 2650 (1986)) of the lower courts that entertain

collateral attacks against a conviction. See Szabo, 186 Ill. 2d at 43 (Freeman, C.J., specially concurring, joined by Heiple, J.)

(recognizing that, by acknowledging the cause and prejudice

standard in Flores, the court attempted to “formulate objective guidelines to which the lower courts could turn in determining

what constitutes a fundamental deficiency in prior post-conviction

proceedings”).

	To that end, this court has noted that the term “cause” denotes

“ ‘ “some objective factor external to the defense [that] impeded

counsel’s efforts” to raise the claim’ in an earlier proceeding.” Flores, 153 Ill. 2d at 279, quoting McCleskey, 499 U.S. at 493, 113 L. Ed. 2d at 544, 111 S. Ct. at 1470, quoting Murray v. Carrier, 477 U.S. 478, 488, 9 L. Ed. 2d 397, 408, 106 S. Ct. 2639, 2645 (1986). Moreover, the United States Supreme Court has

identified objective factors that constitute cause to include

“ ‘ “interference by officials” ’ that makes compliance with the

State’s procedural rule impracticable, and ‘a showing that the

factual or legal basis for a claim was not reasonably available to

counsel.’ [Citation.] In addition, constitutionally ‘[i]neffective

assistance of counsel ... is cause.’ [Citation.] Attorney error short

of ineffective assistance of counsel, however, does not constitute

cause ***.” McCleskey, 499 U.S. at 493-94, 113 L. Ed. 2d at 544, 111 S. Ct. at 1470. To establish actual prejudice, a petitioner “must

show ‘not merely that the errors at ... trial created a possibility of

prejudice, but that they worked to his actual and substantial

disadvantage, infecting his entire trial with error of constitutional

dimensions.’ ” Murray, 477 U.S. at 494, 91 L. Ed. 2d at 412, 106 S. Ct. at 2648, quoting United States v. Frady, 456 U.S. 152, 170, 71 L. Ed. 2d 816, 832, 102 S. Ct. 1584, 1596 (1982). Moreover,

even if a federal habeas petitioner cannot show cause and prejudice, the failure to raise the claim in an earlier petition may

nonetheless be excused if he or she can show that a fundamental

miscarriage of justice would result from a failure to entertain the

claim. In order to demonstrate a miscarriage of justice to excuse

the application of the procedural bar, a petitioner must show actual

innocence. See Sawyer v. Whitley, 505 U.S. 333, 120 L. Ed. 2d 269, 112 S. Ct. 2514 (1992). In the context of the death penalty,

a defendant must show “by clear and convincing evidence that but

for a constitutional error, no reasonable juror would [have found

him or her] eligible for the death penalty under [the applicable

state] law.” Sawyer, 505 U.S. at 348, 120 L. Ed. 2d at 285, 112 S. Ct. at 2523.

	In light of the above, I would employ the cause and prejudice

standard in cases such as this order to determine whether the

claims in the successive petition can be considered on their merits.

The need for this court to speak definitively as to fundamental

fairness is all the more compelling here because the dissenting

justice would reach the merits of the contentions raised in defendant’s second petition because of undefined “fundamental[ ]

flaw[s]” in the defendant’s initial post-conviction proceeding. See

slip op. at 356 (Harrison, J., dissenting). Regrettably, the court

today misses the opportunity to provide the criminal bar with a

cogent analytical framework within which successive post-

conviction proceedings can be evaluated. A review of our docket

over the last year reveals that this is the third case in which a

successive petition has been reviewed by this court. See Erickson, 183 Ill. 2d 213; Szabo, 186 Ill. 2d 9. I am confident that it will not be our last. It is my hope that, in some future case, a majority of

this court will provide both practitioners and our lower courts with

some guidance in this area by recognizing the utility of employing

an objective standard to guide consideration of successive post-

conviction petitions.

	JUSTICE McMORROW joins in this special concurrence.

	JUSTICE BILANDIC, also specially concurring:

	I agree that the time limit in section 122–1 of the Post-

Conviction Hearing Act (Act) (725 ILCS 5/122–1 (West 1994)) is

a statute of limitations, and that the State waived its right to argue

that defendant’s petition is untimely by failing to raise the issue in

the trial court. I also agree that the issues raised in defendant’s

second post-conviction petition are waived or barred by res judicata. I write separately, however, to set forth the proper method of resolving the claims in this successive post-conviction

petition. As explained below, the “cause and prejudice” standard

provides the best means for determining whether to relax the

procedural bar in cases involving successive post-conviction

petitions.

	The Act contemplates the filing of only one post-conviction

petition. People v. Flores, 153 Ill. 2d 264, 273 (1992); People v. Free, 122 Ill. 2d 367, 375 (1988). A defendant, therefore, faces an immense procedural hurdle when bringing a successive post-

conviction petition. Section 122–3 of the Act provides that “[a]ny

claim of substantial denial of constitutional rights not raised in the

original or an amended petition is waived.” 725 ILCS 5/122–3 (West 1994); Flores, 153 Ill. 2d at 274; Free, 122 Ill. 2d at 375- 76. Furthermore, a ruling on an initial post-conviction petition has res judicata effect with respect to all claims that were raised or could have been raised in the initial petition. Flores, 153 Ill. 2d at 274; Free, 122 Ill. 2d at 376.

	In this case, defendant’s second post-conviction petition

alleges (1) that the judge for defendant’s trial and sentencing

hearing, as well as for both post-conviction proceedings, had a

conflict of interest because he had prosecuted defendant for the

armed violence conviction that the prosecution used as

impeachment evidence during trial and as an aggravating factor

during sentencing, and that defendant’s trial and appellate counsel

were ineffective for failing to raise the conflict issue; (2) that the

prosecutor had a conflict of interest because she was defendant’s

attorney in the armed violence case in which the trial judge

prosecuted defendant, and that defendant’s appellate counsel was

ineffective for failing to raise the issue; (3) that defendant’s trial

counsel was ineffective for failing to investigate, argue, and

introduce available evidence that defendant should be found guilty

but mentally ill; and (4) that defendant’s trial counsel was

ineffective for failing to investigate and present available mitigating

evidence of defendant’s mental deficiency and psychological

problems. Defendant has waived the first three of these claims by

failing to raise them in his first post-conviction petition. See 725

ILCS 5/122–3 (West 1994); Flores, 153 Ill. 2d at 274; Free, 122 Ill. 2d at 375-76. As to the fourth argument, this court already

rejected essentially the same argument on direct appeal from the

denial of defendant’s first post-conviction petition. See People v. Wright, 149 Ill. 2d 36, 51 (1992) (Wright II). This argument is therefore barred by res judicata. See Flores, 153 Ill. 2d at 274; Free, 122 Ill. 2d at 376.

	This court has, however, held that a successive post-

conviction petition may be considered where the proceedings on

the initial post-conviction petition were deficient in some

fundamental way. Flores, 153 Ill. 2d at 273-74; see also Free, 122 Ill. 2d at 376, citing People v. Hollins, 51 Ill. 2d 68, 70 (1972); People v. Nichols, 51 Ill. 2d 244, 246 (1972); People v. Slaughter, 39 Ill. 2d 278, 285 (1968). This court has held that the strict application of procedural bars may be relaxed where “fundamental

fairness” requires. Flores, 153 Ill. 2d at 274-75, citing People v. Gaines, 105 Ill. 2d 79, 91 (1984); Hollins, 51 Ill. 2d at 70; Slaughter, 39 Ill. 2d at 285. As this court has previously noted in the context of a first post-conviction petition, “fundamental

fairness” requires us to review procedurally defaulted claims in

collateral proceedings only when the defendant shows both “cause”

for failing to raise the error earlier and “prejudice” resulting from

the error. People v. Owens, 129 Ill. 2d 303, 317-18 (1989), citing Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977). Likewise, in the specific context of a successive post-

conviction petition, this court has in the past equated the concept

of fundamental fairness with the cause and prejudice standard.

Flores, 153 Ill. 2d at 278-80; see also People v. Whitehead, 169 Ill. 2d 355, 407 (1996) (Miller, J., specially concurring); People v. Szabo, 186 Ill. 2d 19, 42-44 (1998) (Freeman, C.J., specially concurring, joined by Heiple, J.).

	Moreover, federal courts use the cause and prejudice standard

when evaluating successive habeas corpus actions. See, e.g., McCleskey v. Zant, 499 U.S. 467, 493-94, 113 L. Ed. 2d 517, 544- 45, 111 S. Ct. 1454, 1470 (1991). Consequently, this court in

Flores looked to United States Supreme Court decisions in defining the terms “cause” and “prejudice” in the context of a

successive post-conviction petition. The Supreme Court has

defined “cause” as an objective factor that impedes an attorney’s

ability to raise a claim in an earlier proceeding. Flores, 153 Ill. 2d at 279, citing McCleskey, 499 U.S. at 493, 113 L. Ed. 2d at 544, 111 S. Ct. at 1470. “Prejudice” has been defined as an error which

infects the entire trial to such a degree that the resulting conviction

violates the defendant’s due process rights. Flores, 153 Ill. 2d at 279, citing McCleskey, 499 U.S. at 493-94, 113 L. Ed. 2d at 544, 111 S. Ct. at 1470. This court has stated that the cause and

prejudice test “is similar to, and accomplishes no more than, our

fundamental fairness concept.” Flores, 153 Ill. 2d at 279.

	Application of the cause and prejudice test to this case reveals

that defendant remains procedurally barred from bringing this

second post-conviction petition. Defendant has failed to sufficiently

allege cause for failing to raise these claims earlier, and he has failed to sufficiently allege prejudice resulting from the alleged

errors. Defendant argues as to each issue that fundamental fairness

dictates that this court address his claims. In this regard, however,

defendant merely claims that the attorneys who represented him on

direct appeal were the same attorneys who represented him during

the initial post-conviction proceedings. This court has implicitly

recognized that a defendant may show cause for failing to raise in

a first post-conviction petition an ineffective assistance of appellate

counsel claim, where the same attorneys who represented

defendant on direct appeal also represented defendant during the

initial post-conviction proceedings. See Flores, 153 Ill. 2d at 281- 82. This situation establishes cause because it would be

unreasonable to expect counsel to argue his or her own

incompetency. Flores, 153 Ill. 2d at 282.

	In any event, as the majority discusses, the record refutes

defendant’s claim that the attorneys who represented defendant on

direct appeal were the same attorneys who represented defendant

during the initial post-conviction proceedings. On direct appeal,

defendant was represented by attorneys from the office of the State

Appellate Defender. During the trial court proceedings on

defendant’s first post-conviction petition, however, the Vermilion

County public defender represented defendant.

	As a final matter, defendant also appears to argue that

fundamental fairness requires us to consider his second post-

conviction petition because the judge for defendant’s trial,

sentencing hearing, and both post-conviction proceedings should

have recused himself from ruling on defendant’s first post-

conviction petition. According to defendant, the judge could not

impartially rule on defendant’s first post-conviction petition

because the petition included an allegation that one of defendant’s

trial attorneys was ineffective, and that this attorney had previously

worked for the judge as an assistant State’s Attorney when the

judge was the State’s Attorney. As the majority discusses, the

judge was not required to recuse himself. The mere fact that a

judge has a relationship with an attorney involved in the case is not

sufficient to establish bias. See People v. Steidl, 177 Ill. 2d 239, 264 (1997). Thus, this argument in no way warrants a relaxation

of the procedural bar in this case.

	For the foregoing reasons, I concur in the ultimate resolution

of this case. I write separately to explain that the cause and

prejudice standard provides the best means for determining

whether to relax the procedural bar in cases involving successive

post-conviction petitions.

	JUSTICE HARRISON, dissenting:

	I agree that the State has waived its right to challenge the

timeliness of defendant’s second post-conviction petition. Contrary

to the majority, however, I do not believe that the trial court acted

properly in dismissing that petition. Even if the issues asserted in

the petition were raised or could have been raised in defendant’s

initial post-conviction proceedings, those proceedings were

fundamentally flawed. Accordingly, defendant should not be

precluded from seeking relief in a successive post-conviction

proceeding. People v. Flores, 153 Ill. 2d 264, 273-74 (1992).

	Where, as here, a defendant seeks relief under the Post-

Conviction Hearing Act (725 ILCS 5/122–1 et seq. (West 1994)), he is entitled to an evidentiary hearing if the allegations in his

petition make a substantial showing of a deprivation of rights under

the United States and/or Illinois Constitutions. In determining

whether an evidentiary hearing is required, the circuit court must

take all well-pleaded facts in the petition and affidavits as true.

People v. Coleman, 183 Ill. 2d 366, 378 (1998). If the circuit court dismisses the petition without an evidentiary hearing, as the circuit

court did in this case, its assessment of the sufficiency of the

petition enjoys no deference on appeal. Rather, the judgment of the

circuit court is subject to plenary review. Coleman, 183 Ill. 2d at 388-89.

	Based upon the well-pleaded allegations in defendant’s

petition and supporting affidavits, I believe that defendant did make

a substantial showing that his constitutional rights were violated.

Most significant is defendant’s charge that he was denied due

process by the trial judge’s refusal to recuse himself from the case.

Due process requires a judge to recuse himself or herself where

actual bias exists (People v. Hall, 157 Ill. 2d 324, 332 (1993)) or where his or her hearing the case would create the appearance of partiality (In re Murchison, 349 U.S. 133, 136, 99 L. Ed. 942, 946, 75 S.Ct. 623, 625 (1955)). Those circumstances were present here.

	Defendant and the trial judge had a preexisting adversarial

relationship. Before sitting on this case, the trial judge served in the

State’s Attorney’s office and had successfully prosecuted

defendant for armed violence. The judge then used that same

conviction as an aggravating factor in imposing the death sentence

in this case. The result, in effect, is that defendant was sent to the

executioner by the same man responsible for securing the

conviction that made him death eligible. This constitutes a

fundamental departure from the constitutional promise of an

unbiased tribunal.

	I note, moreover, that when the trial judge prosecuted

defendant, he agreed to a plea bargain which permitted defendant’s

release on probation after a relatively short period of time. It was

while defendant was on probation for that offense that he

committed the crimes at issue in this case. The judge was aware of

these circumstances, and it would not be unreasonable to assume

that his decision to sentence defendant to death was influenced by

some sense of personal responsibility for having placed defendant

in a position where he was able to kill. At the very least, the

situation presented “ ‘a possible temptation such that the average

person, acting as judge, could not hold the balance nice, clear and

true between the State and the accused.’ ” People v. Coleman, 168 Ill. 2d 509, 540-41 (1995), quoting People v. Del Vecchio, 129 Ill. 2d 265, 275 (1989).

	This is the second time in as many years that we have had to

deal with this trial judge’s failure to recuse himself from a capital

case involving a post-conviction challenge. In People v. Steidl, 177 Ill. 2d 239 (1997), as here, the judge denied the post-conviction

petition without an evidentiary hearing. In that case, however, our

court reversed and remanded for an evidentiary hearing before a

different judge, holding, inter alia, that the judge should have recused himself from the case because his long-term professional

association with defendant’s original trial attorney prevented him

from making an unbiased assessment of defendant’s claim that the

attorney was ineffective. Steidl, 177 Ill. 2d at 265-66. The conflict in this case in no less serious than the one we condemned in Steidl. If anything, the compromise in this defendant’s due process rights

is even more egregious.

	Defendant’s due process problems were not limited to the bias

of the trial judge. Besides having been tried and sentenced to death

by his former prosecutor, defendant was also prosecuted by the

attorney who formerly served as his defense counsel. The

prosecutor, who was directly involved in defendant’s capital

sentencing hearing, was the same lawyer who had unsuccessfully

defended defendant against the armed violence charge which the

trial judge prosecuted while he was State’s Attorney. Where an

attorney provides direct representation to a defendant, has a

significant role in the defendant’s case, and is privy to the

defendant’s confidences, that attorney may not thereafter serve as

a prosecutor in proceedings against his former client. That is so not

only when the subsequent proceedings involve the same offense for

which the attorney originally provided representation (see People v. Courtney, 288 Ill. App. 3d 1025, 1031-33 (1997)), but also when the proceedings are related as they were here. Because the

armed violence conviction was integral to obtaining the death

sentence, the attorney’s prior representation of defendant on the

armed violence charge created a per se conflict which should have prevented participation by her and her office in defendant’s

subsequent prosecution for capital murder.

	For the foregoing reasons, I would reverse the judgment of the

circuit court and remand the cause for appointment of a special

prosecutor to represent the State and for an evidentiary hearing

before a different judge. I would also direct the circuit court to set

aside defendant’s sentence of death, regardless of the outcome of

the evidentiary hearing. For the reasons set forth in my dissent in People v. Bull, 185 Ill. 2d 179 (1998), this state’s present death penalty law does not meet the requirements of the eighth and

fourteenth amendments to the United States Constitution (U.S.

Const., amends. VIII, XIV) or article I, section 2, of the Illinois

Constitution (Ill. Const. 1970, art. I, §2). Accordingly, even if the

circuit court determines that defendant’s post-conviction petition

must fail on the merits, defendant’s death sentence cannot stand.

At a minimum, defendant must be given a sentence other than

death. I therefore dissent.